Speech by p.sathasivam

8/13/2019 Speech by p.sathasivam

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ROLE OF JUDICIAL OFFICERS IN

CRIMINAL JUSTICE ADMINISTRATION

Speech delivered by Honble Mr. Justice P.Sathasivam,Judge, Supreme Court of India on !.".#"$ at

%amil &adu State Judicial 'cademy for

the &e(ly )ecruited Civil Judges

Tamil Nadu is my home State and I am always delighted to be back

here. Today, in particular, I find myself embraced by intense nostalgia to be

back at a place where I began my career. I feel elated and immensely happy

in addressing you, the youngest members of judiciary who will be part of the

foundational edifice of the machinery of criminal justice in our country. You

may have limited jurisdiction in terms of sentencing and nature of offence,

yet you constitute the basis of pyramid of our judicial structure. In your

domain resides the daunting task of administering swift justice at the

grassroots and reassuring public confidence in our legal system.

t the cademy, you have undergone training in assessing evidence,

decision!making, judgment writing and case management. t the same time

your curriculum focuses on "udicial ccountability, "udicial ethics and

conduct, Sensitivity training in contemporary social issues and #ersonality

$evelopment. You are now ready to utilise this training and translate it into

action. I must say, the role of judge is neither that of mute spectator nor a

neutral umpire, but that of an active player embodying the right spirit ofensuring justice.

MAGISTRATE: THE KINGPIN IN CRIMINAL JUSTICE ADMINISTRATION

%riminal "ustice reflects the responses of the society to crimes and

criminals. The key components engaged in this role are the courts, police,

prosecution, and defence. dministering criminal justice satisfactorily in a

democratic society governed by rule of law and guaranteed fundamental

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rights is a challenging task. It is in this conte&t that the subordinate

judiciary assumes great importance. The role of magistrate is effectively

summed up in the words of 'ormer %hief "ustice (anganath )ishra in a

writ petition relating to conditions of subordinate judiciary in the case of AllIndia Judges Association vs. Union of India (1992) 1 SCC 119

*here he observes+

The Trial judge is the kingpin in the hierarchical system of

administration of justice. He directly comes in contact with the litigant during

the proceedings in court. On him lies the responsibility of building up of the

case appropriately and on his understanding of the matter the cause of justice

is first answered. The personalities, knowledge, judicial restraint, capacity to

maintain dignity are the additional aspects which go into making the Courts

functioning successful.

)entioning the high e&pectations of society from the judges, he

further advices+

! judge ought to be wise enough to know that he is fallible and

therefore, e"er ready to learn and be courageous enough to acknowledge his

errors.

(ight to speedy trial is implicit in the right to life and liberty

guaranteed by Article 21of the %onstitution of India. owever, there is a

huge pendency of criminal cases and inordinate delay in the disposal of the

same on the one hand and very low rate of conviction in cases involving

serious crime.

s per the latest amendment, Section -/ of the %r.#% has been

inserted with an e&planation to its sub!clause. *ith an aim to speed!up

trials, the amendment states that no adjournment should be granted at the

party0s re1uest, nor can the party0s lawyer being engaged in another court

be ground for adjournment. Section -/ contains a mandatory provision

that in every in1uiry or trial the proceedings shall be held as e&peditiously

as possible and in particular when the e&amination of witnesses has once

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begun the same shall be continued from day to day until all witnesses in

attendance have been e&amined unless the court finds the adjournment of

the case beyond the following day to be necessary for reasons to be

recorded. *hen the en1uiry or trial relates to an offence under Section -23to -23$ I#%, the same shall be completed within a period of two months

from the date of commencement of the e&amination of witnesses.

The introduction of #lea 4argaining included under sections 536 to

5367 of the %ode of %riminal #rocedure has also been noticed very

effectively. "udicial 8fficers must be aware of 9offences affecting the socio!

economic condition of the country: for the purpose of Section 536. judge

should be well versed with the latest amendments and further developments

which take place in law and put them into practice to give effect to the

intent of the legislature which is to speed up the process of delivering

justice.

Section ;36 of the Indian


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8ne of the cardinal principles of criminal law is that everyone is presumed

to be innocent unless his guilt is proved beyond reasonable doubt in a trial

before an impartial and competent court. "ustice re1uires that no one be

punished without a fair trial and judicial officers play their part in ensuringthe same.

FAIR TRIAL TO ACCUSED: CO-RELATIVE DUTIES OF MAGISTRATE

It is well settled today that the accused has fundamental right to

know the grounds of his arrest, right to legal aid in case he is indigent, right

to consult his lawyer and such other rights guaranteed by %onstitution and

e1uivalent safeguards incorporated in %r#%. 7et0s pause here and dwell

more on the corresponding duties of a magistrate in ensuring fair trial to the

accused.

rticle 55>5? provides that every person who is arrested and detained

in custody shall be produced before the nearest magistrate within a period

of 5@ hours of such arrest and no one shall be detained in custody beyond

the said period without the authority of a magistrate. The magistrate can

pass order of remand to authorise the detention of the accused in such

custody as such magistrate thinks fit, for a term not e&ceeding ;6 days in

the whole. "ustice 4hagwati summed up the purpose of these safeguards in

Khatri II vs State of ihar (19!1) 1 SCC "2#

This healthy pro"ision enables the magistrates to keep check o"er the

police in"estigation and it is necessary that the magistrates should try

enforcing this re#uirement and where it is found disobeyed, come down

hea"ily upon the police... There is howe"er, no obligation on the part of the

magistrate to grant remand as a matter of course. The police ha"e to make out

a case for that. $t cant be a mechanical order.

(ight to know the ground of arrest is conferred the status of

fundamental right under article 55>;?. It is reasonable to e&pect that

grounds of arrest communicated in language understood by the accused.

'urther, the accused has right to inform his friend or relative of his arrest.

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rrest of a person is a denial of an individual0s liberty which is fundamental

to one0s e&istence. The fundamental rights will remain mere promise if

)agistrates do not ensure compliance of the same. ence, magistrates have

been given the fundamental duty under amended section 6 of the%riminal #rocedure to satisfy that the police has informed the arrested

person of his rights and made an entry of the fact in book to be maintained

in the police station.

There have been fre1uent complaints about the police0s non!

compliance of the above mentioned re1uirements. The magistrates are

empowered under section /2 to issue search warrant which is in the nature

of a writ of habeas corpus for rescue of a wrongfully confined person by

intervention of police directed by a magisterial order. If magistrate has

reason to believe that any person is confined under circumstances that

amounts to an offence, he may issue a search warrant and person if found

shall be immediately taken before a magistrate.

The accused has a right to be medically e&amined and if such a

re1uest is made, the )agistrate shall direct e&amination of the body unless

he considers it is made for purpose of delay or defeating the ends of justice.

In Sheela arse vs State of $aharashtra (19!%) 2 SCC 9", it was held

by the on0ble Supreme %ourt that the arrested accused person must be

informed by the magistrate about his right to be medically e&amined in

terms of section section 6@. In this case, igh court directed magistrates to

ask the arrested person as to whether he has any complaint of torture or

maltreatment in police custody.

The state under constitutional mandate is re1uired to provide free

legal aid to an indigent accused person and this arises not only when the

trial commences but when the accused is for the first time produced before

the magistrate, as also when he is remanded from time to time. In Anil

&adav v State of ihar 19!2 (2) SCC 19' commonly referred to as

hagalur linding case, the judicial magistrates failed in their duties to

inform blinded prisoners of their rights. s a result, the Supreme %ourt had

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to cast a duty on all magistrates and courts to promptly and duly inform the

indigent accused about his right to get free legal aid as without this the right

may prove to be illusory. The right to legal aid today is enshrined in rticle

-/ and further institutionalised with the coming into force of the 7egalServices uthorities ct, ;/A3. This assumes more significance as denial of

the same may even vitiate the trial at later stage.

'urther, in ussainara Khatoon * Case (19!+) 1 SCC 1+!it was

held that it is the duty of the magistrate to inform the accused that he has a

right to be released on bail on e&piry of statutory period of / or 3 days as

the case may be. Suffice is to say that magistrates are the best persons to

oversee that the accused is not denied his rights.

*e must not forget that ensuring criminal justice re1uires cooperation

of the two arms of the state directly involved i.e. the judiciary and the police

machinery. *hile direct interference is not desirable in investigation

process, the magistrate is kept in the picture at all the stages of the police

investigation. 8n a conjoint reading of section 62 and ;32 of the %ode, it is

clear that the legislative intention was to ensure speedy investigation after a

person has been taken in custody. It is e&pected that investigation is

completed within 5@ hours and if not possible within ;6 days. The role of

magistrate is to oversee the course of investigation and prevent abuse of law

by investigating agency. owever, you must understand that your role is

complementary to that of police. In doing so, you must preside without fear

or favour.

RECORDING CONFESSIONS D!ING DECLARATION

%onfessions and dying declarations recorded by magistrate constitute

valuable evidence as they may form the basis of conviction of the accused.

lthough there is no hard and fast rule as to proper manner of recording the

same, the )agistrate must follow certain broad guidelines to ensure that the

document inspires confidence of the court assessing it.

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"ust as the 'I( recorded is of great importance because it is the

earliest information given soon after the commission of a cognisable offence

before there is time to forget, fabricate or embellish. Similarly the confession

made to magistrate is highly valuable evidence. Section ;3@ empowersmagistrate to record even when he has no jurisdiction in the case. 4efore

recording any such confession, the magistrate is re1uired to e&plain to the

person making confession that

a? e is not bound to make such a confession

b? If he does so it may be used as evidence against him

These provisions must be administered in their proper spirit lest they

become mere formalities. The magistrate must have reason to believe that it

is being made voluntarily. You must e&ercise your judicial knowledge and

wisdom to find out whether it is voluntary confession or not. The magistrate

must see that the warning is brought home to the mind of the person

making the confession. If the recording continues on another day, a fresh

warning is necessary before a confession is recorded on the other day.

fter giving warnings, the magistrate should give him ade1uate time

to think and reflect. There is no hard and fast rule but the person must be

completely free from possible police influence. Normally such a person is

sent to jail custody at least for a day before his confession is recorded. ow

much time for reflection should be allowed depends on circumstances in

each case.

The act of recording confession is a solemn act and in discharging

such duties the magistrate must take care to see that the re1uirements of

law are fully satisfied. The magistrate recording the confession must

appreciate his function as one of a judicial officer and he must apply his

judicial mind to the task of ascertaining that the statement the accused is

going to make is of his own accord and not on account of any influence on

him.

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dying declaration is an admissible piece of evidence under section

-5 of Indian


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SUMMAR! TRIALS: ROLE OF MAGISTRATES IN DELIVERING S"IFT

JUSTICE

The magistrates are empowered to deal with summons cases and few

specific warrant cases in a summary way with the clear intention of

ensuring speedy justice. They can give an abridge version of regular trial in

offences like petty thefts, house trespass, cattle trespass, insult to provoke

breach of peace and other such offences punishable with imprisonment not

e&ceeding 5 years.

The inclusion of additional forms of crime, for e&ample, section ;-A

cases under the Negotiable Instruments ct or section @/A cases under the

Indian #enal %ode have contributed a large number of cases in the criminal

courts. 8ver -A lakh che1ue bouncing cases are pending in various courts

in the country. uge backlog of che1ue bouncing or dishonoured che1ue

cases need to be speedily disposed, lest the litigants lose faith in the judicial

system and the purpose of the ct be defeated. In this conte&t, the 7aw

%ommission in its 5;-th(eport has recommended setting up of fast track

magisterial courts to for fast disposal of che1ue. owever, I strongly believe

that if magistrates fulfill the mandate laid down in section ;@- of the ct,

separate courts may not be re1uired. The provisions of section ;@-, as

inserted in the ct in 55, state that offences under section ;-A of the ct

shall be tried in a summary manner. It empowers the )agistrate to pass a

sentence of imprisonment for a term up to one year and an amount of fine

e&ceeding five thousand rupees. It also provides that if it appears to the

)agistrate that the nature of the case is such that a sentence of

imprisonment for a term e&ceeding one year may have to be passed, he can

do so after hearing the parties and recalling any witness who may have been

e&amined. Bnder this provision, so far as practicable, the )agistrate is

e&pected to conduct the trial on a day!to day basis until its conclusion and

conclude the trial within si& months from the date of filing of the complaint.

'urther, section ;@2 makes the offence punishable under section ;-A of the

ct compoundable i.e. it can be settled between the parties. The court can

note the same and record the settlement reached. In a,odar S /ra0hu vs

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Sa-ed a0alal (2+1+) ' SCC ""% the %ourt laid down certain broad

guidelines to ensure that application for compounding is made at an early

stage of trial. The guideline empowers the magistrate to

%a& 'i"e directions making it clear to the accused that he could make an

application for compounding of the offences at the first or second hearing of

the case and that if such an application is made, compounding may be

allowed by the court without imposing any costs on the accused.

%b& $f the accused does not make an application for compounding as aforesaid,

then if an application for compounding is made before the (agistrate at a

subse#uent stage, compounding can be allowed subject to the condition that

the accused will be re#uired to pay )*+ of the che#ue amount to be deposited

as a condition for compounding with the egal -er"ices !uthority, or such

authority as the Court deems fit.

The court further observed that+

Complaints are being increasingly filed in multiple jurisdictions in a

"eatious manner which causes tremendous harassment and prejudice to the

drawers of the che#ue. /e direct that it should be mandatory for the

complainant to disclose that no other complaint has been filed in any other

court in respect of the same transaction. -uch a disclosure should be made on

a sworn affida"it which should accompany the complaint filed under -ection

0** of the Cr1C.

I have recapped section ;@- of the ct and above!mentioned

guidelines so that you comprehend the significance of summary trial

procedure as a tool in your hands, which you must utiliCe to deliver swift

justice. The responsibility is cast on you to act in a fair, judicious and yet

balanced way to ensure that the accused also gets a fair opportunity of

defending the case and, at the same time, also to ensure that this provision

is not misused by the accused only for the purpose of protracting the trial or

to defeat the ends of justice.

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CROSS CASE

In a recent case r. $oha,,ad Khalil Chisti vs. State of

a3asthaninvolving free fight where there was cross case, I myself observed

with regret the duplication of proceedings in the same case which should

have been ideally heard and disposed of together at both trial and appellate

stage. You may come across similar circumstances where there are

allegations and counter allegation. *here there are two different versions of

same incident resulting into two criminal cases are described as 9case and

counter case: In such a scenario, you must try the two cases together. Trial

of cross cases presents a variety of ticklish practical issues and challenges.

Bnder section -;/ of the %ode, if a magistrate upon hearing a case against

certain accused finds from the evidence that some person, other than the

accused before him, is also concerned in that very offence or in connected

offence he should hold trial together.

In St#te O$ M%P &' Mi'(ril#l )2**+, SCC .2/, both the parties

lodged an 'I( against each other in respect of the same incident. The

Supreme %ourt while giving guidance as to the procedure to be adopted in

such cases has observed as follows+!

The cross2 cases should be tried together by the same court

irrespecti"e of the nature of the offence in"ol"ed. The rationale behind this is

to a"oid the conflicting judgments o"er the same incident because if cross

cases are allowed to be tried by two courts separately there is likelihood of

conflicting judgments.

FINAL REMARKS

To conclude, I would like to convey that a vibrant subordinate

judiciary is the need of the hour. Inordinate delays, escalating cost of

litigation and ine1uality in the system sometimes make the delivery of

justice on unattainable goal. 4ut we have to be optimistic and work together

to not just uphold the rule of law, but ensure that litigant does not lose faith

in the maCe that our legal system has become. Young judges must brace

themselves to do their part which may be onerous but fully satisfying.

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Section A/ of the %#% allows judges to refer disputes for settlement

through $( procedures in cases where elements of settlement are

discernible. The provisions of Section A/ should be employed wherever the

opportunity arises since the same encompasses two objectives. The referralto $( 0ecre#'e' t(e c#'el#0 #0 #rre#r' $ t(e c3rt and thus

increases the time, which can be devoted to contentious matters which

cannot be settled through $( methods. In addition, the regular

employment of Section A/ shall also foster and promote the method of $(.

You must not see judicial service as service in the sense of

employment. The judges are not employees. They e&ercise the sovereign

judicial power of the state as prime dispensers of justice. *orking in court of

law is not purely mechanical but demands ability, alertness,

resourcefulness, tact and imagination. %hanging dynamics of our legal

system demands that judges be in continuous training and education.

If independent and efficient judicial system is to remain the basic

structure of our %onstitution, a competent subordinate judiciary is its

indispensable link. I have full faith that you will fulfil this role dutifully and

efficiently.

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Speech by p.sathasivam

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